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Estate Planning FAQ

Estate Planning Attorneys in Grafton & Waukesha County

Creditors, probate, and taxes are the three greatest threats to your estate planning. (This is true regardless of your age, income, or the types of assets you own.) By getting your estate planning in order, you can keep the government, the court system, and your creditors from taking a bite out of the inheritance and assets you leave behind.

At Kitzke & Canfield, LLC, we provide the estate planning services you need to avoid probate entirely and ensure your wishes are fulfilled following your passing. We are a team of experienced attorneys and skilled estate planners, and you can count on us to help you protect yourself and your loved ones.

We serve clients in Grafton, Waukesha County, and the surrounding areas.

Got questions? For trustworthy legal answers, call us at (262) 214-6827 or send us a messageto schedule a consultation.

Wills & Probate

Does Having a Will Meet All My Estate Planning Needs

Having a will is a great start, but it isn’t enough to protect your family from probate. In fact, only having a will leads directly to the expense, waiting, and frustration of probate court. This is in large part because wills have to be filed with and approved by probate court before they are officially enforceable.

What Is Probate?

Probate is the legal process by which the court and your appointed estate representative pay your creditors and distribute your assets after you pass away. During probate proceedings, the court oversees the transfer of your assets to your named beneficiaries Your will is, more or less, a written recommendation to the court regarding who gets what. Without a will, the court will divide your possessions and assets according to state and local statutes.

Is it Better to Avoid Probate?

Yes. There are three major reasons to avoid probate at all costs:

  1. It tends to be very expensive: There are legal costs associated with virtually all aspects of the probate process, from paperwork filing to court fees. Attorney’s fees also typically amount to between three and five percent of the deceased’s estate.
  2. It is a very long, drawn-out process: In addition to being expensive, probate proceedings can take between nine months and two years to complete. Until probate is over, all assets in question are frozen and cannot be used or distributed.
  3. It is open to the public: Given that probate files are public, any interested party can see how much you earned, what you owned, who was given which of your assets, and any other information relevant to your case.

Trusts & Trustees

What Does a Successor Trustee (or “Backup Trustee”) Do?

A successor trustee manages your assets and pays your expenses in the event you become[BC1] incapacitated, though you are able to regain control of your assets if you recover. When you die, a backup trustee pays off your debts and allocates your assets to the beneficiaries named in your trust. When a backup trustee is in charge of this process, all this can be done quickly and privately, allowing you to evade the court system entirely.

Who Can Be a Backup Trustee?

A backup trustee can be any person of your choice, including adult children, family members, trusted friends, etc. It is always wise to have multiple backup trustees, in the event your first choice in unable to fulfill their responsibilities.

What Will Happen to My Trust When I Die?

Trusts do not necessarily have to die with you like wills. The person you have chosen to manage you trust will do so until your beneficiaries reach the appropriate age to access their inheritance.

Do I Need an Attorney to Establish a Trust?

Yes. By working with an experienced estate planning lawyer, you increase the likelihood that your wishes will be carried out exactly as you intend and your Trust will be properly prepared and funded.

Living Trusts

What Is a Living Trust?

A living trust is essentially a legal “container” that holds your assets. In many ways, it looks and functions like a will, especially in that it includes instructions for distribution of assets after your death. However, unlike a will, it allows you to avoid probate and keeps the court system from gaining control over your assets in the event you become incapacitated.

Should I Have a Living Trust?

Living trusts aren’t only for people with large estates. Anyone who wants to avoid the inconvenience and expense of probate court can establish a living trust, even people with smaller estates. If you are an adult child helping your parents or an older relative create an estate plan, consider helping them establish a living trust, as this will allow you to help manage their assets and distribute their possessions according to their wishes without spending years of your life and thousands of dollars in probate court.

Is the Trust in My Will a Living Trust?

No. A will can create trusts after you die, but all wills must be probated before they are enforceable, defeating the purpose of establishing a trust to avoid probate. Assets will not be placed in the trust until the will is approved by the court.

Is it Expensive to Have a Living Trust?

Compared to the costs and loss of control that probate court and guardianship present, a living trust is a smart financial decision. On the front end, establishing a living trust may cost more than establishing a will, but the long-term and overall benefits of having a living trust will be worth it. However, keep in mind that just because a living trust option comes with a high price tag doesn’t mean it is necessarily a better option. You should be able to create a comprehensive, enforceable estate plan (including a living trust) for approximately $2,000[BC2], if not less.

Can a Living Trust Help Me Save on Estate Taxes?

This depends on the exemptions and specific tax rates that are in effect. However, a trust can generally allow spouses to maximize exemptions by splitting assets at the point of death and passing the rest to the family at the point of the second spouse’s death. This allows couples to avoid taxation on the majority of their assets.

Management of Assets

Why Does the Court Get Involved at Incapacity?

By law, persons who are incapable of making decisions on their own behalf due to cognitive, physical, and/or illness-related limitations must have a court-appointed legal guardian (if they have not named a Power of Attorney by the point they become incapacitated). If a guardian is appointed for your loved one, it can make it very challenging to do any future planning in regards to finances, distribution of assets, etc.

Does Joint Ownership Allow Spouses to Avoid Probate?

Not necessarily. If anything, joint ownership merely postpones probate proceedings until the surviving spouse dies. If an asset has not been placed in a trust at the time of the second spouse’s passing, it will still have to go through probate. You could also lose control of your assets if you add co-owners, putting them squarely in the hands of the court.

Does Having a Power of Attorney Prevent Probate?

Giving someone power of attorney does not necessarily make them the personal representative of your estate and their influence in your medical, legal, and financial affairs expires at death. As such, powers of attorney cannot be used to avoid probate. However, establishing durable power of attorney in conjunction with a living trust may help ensure that the responsibility for the assets and debts of the deceased is not passed to the court.

Still have questions about estate planning, wills, trusts, etc.? We can help. Call Kitzke & Canfield, LLC today at (262) 214-6827 to speak to a Grafton estate planning lawyer.

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